Revisiting the 2000 election and Bush v. Gore

Everyone is talking about the Supreme Court’s ruling on Obamacare.  But I don’t want to talk about that now.  I want to address another controversial 5-4 ruling, one that many said was the last one before this to garner such attention.  James Fallows alluded to it in his hyperbolic-yet-interesting-but-ultimately-irrelevant pre-ruling post: the curious case of Bush v. Gore.

Since I didn’t start blogging until nine years after that decision, I’ve never really talked about it on here.  It’s quite interesting.  What does our go-to source, Wikipedia, tell us? 

The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment”. Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.

So, Florida screwed up the recount, huh?  What the heck were they doing, counting in Greek numerals?  How can you screw up a simple vote count unless corruption is involved?  Well, whatever.  Then:

The Court stated that the per curiam opinion’s applicability was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

I have read this over and over.  I am no legal expert, but I can read English.  I am going to write, in a separate paragraph, in bold, my reading of this.  If you are a legal expert, please explain to me if I am making mistake in the following paragraph, for I can see no other interpretation.

The Court had to make sure their ruling applied only in that case, because otherwise it could conceivably call into question many other elections in the history of the United States, and future ones as well.  Certainly, every recount was now suspect.  According to their findings, known methods of vote counting may have been unconstitutional.  I mean, if they couldn’t recount votes in a constitutional manner, how could anyone be sure they had counted them right in the first place?

I am not saying the Court was wrong.  I am only saying that if they were right, there existed a possibility that the entire system was fundamentally flawed.  At least that’s how I read it.  Am I wrong?

However, this part was a 7-2 ruling.  The 5-4 ruling was the controversial one, the one that said they couldn’t try a constitutional recount.

Conservatives have been quick to point out that the Court did not decide the election for Bush because, had the recount continued in those counties, Bush would have won anyway.  they cite this New York Times story from 2001:

A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court’s order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.

The story went on to note:

But[…] Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots.

Please observe that the story is from 2001.  Not 2000.  That means that people only found out what would have happened almost a year later.  The Court making their decision knowing that if they stopped the recount Bush would win, whereas if the recount continued, it was unknown whether he or Gore would win.  Now, we learned after the fact that Bush would have won had they allowed the count in those counties to continue, thus rendering it a moot point, but they did not know that at the time.  We must evaluate their decisions based on the knowledge they possessed when they made the ruling:

  • Stop recount: Bush chance of victory = 100%
  • Continue recount: Bush chance of victory = x, where x < 100%

I think it’s clear what the dominant strategies are in this case for any political partisan, no?

But the Supreme Court is not political!  They are just a machine that ruthlessly interprets the law, not biased in any way, shape or form, right?  They wouldn’t decide an election based on anything other than legal precedent.  That wouldn’t be logical.  What would Vulcan High Command say?

Let’s hear from Justice Scalia on the matter:

There you have it.  They had to do it!  Everyone was laughing at us!

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